In Brookshire Bros. v. Aldridge, the Texas Supreme Court clarified the test for when a spoliation jury instruction is appropriate. Since then, two cases have come before the Court on this issue, and in each case the Texas Supreme Court held that a spoliation instruction was not appropriate.
The guiding precedent on spoliation is Brookshire Bros., which in no uncertain terms clarified that: "A fundamental tenet of our legal system is that each and every trial is decided on the merits of the lawsuit being tried," and that spoliation jury instructions have the potential to frustrate that purpose. The Court opined that while the act of spoliation itself (destroying evidence) can negatively impact the fairness of a trial, so too can a spoliation jury instruction. When a jury is allowed to consider spoliation in its deliberations, the instruction can "unfairly skew a jury verdict," because the instruction "can shift the focus of the case from the merits of the lawsuit to the improper conduct that was allegedly committed... during the course of the litigation process."
To address these competing concerns of fairness, the Court established a new standard. If the court determines that spoliation occurred, then a spoliation jury instruction is only appropriate when there was specific intent to conceal discoverable evidence. When there was spoliation without intent, negligent spoliation, a spoliation instruction is proper only "in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense."
The facts of Brookshire Bros. involved whether spoliation instructions were appropriate in a premises liability slip-and-fall case where the defendant retained surveillance video of the fall itself, but allowed other surveillance footage before and after the fall to be automatically erased. Applying the newly-enunciated standard, the Texas Supreme Court concluded that the spoliation jury instruction was improper and granted a new trial accordingly.
The Court reasoned that, "had Brookshire Brothers allowed all footage of the incident to be destroyed, the outcome might be different. But there is simply no evidence that Brookshire Brothers... [made] a purposeful effort to conceal relevant evidence."
In the two subsequent cases examining this issue, the spoliation instructions were reversed in each case. In Petroleum Solutions v. Head, the defendant inspected a fuel storage leak on one of its installed products, took the faulty component for further testing, sent the component to a lab for testing, and the component disappeared. Even though the component was a key piece of evidence in the plaintiff's case, the court reasoned that there was no proof of intentional spoliation, and the plaintiff's case was not irreparably deprived.
In Wackenhut Corp. v. Gutierrez, the defendant's school bus collided with another car, and the video recording of the accident from the bus' camera system was automatically taped over a week later. The court reasoned that the Plaintiff had ample evidence to present his case without the video, including the testimony of both drivers, a witness statement, the responding police officer's testimony, the bus company's internal accident report, photos of the accident scene, and medical records. Further, the Court held that a new trial was needed because of the "significant effect the [wrongful] spoliation instruction likely had on the trial."
· If a spoliation jury instruction is improper, Texas appellate courts are likely to find that the instruction unfairly prejudiced the case.
· Spoliation jury instructions are only appropriate when:
o (1) the spoliating party acted with intent to conceal evidence, or
o (2) the spoliating party acted negligently and caused the other party to be irreparably deprived of any meaningful ability to present a claim or defense